III. Justice in the Wake of Genocide

Rwanda was largely destroyed in the spring of 1994. A substantial part of the population was massacred (half a millionto a million out of a population of seven to eight million),23 and another two million fled the country.24 A large proportion of the remaining population was displaced within Rwanda.25 Those who remained were gravely traumatized, and many were seriously injured or maimed.26 Crops, in a country that depends on subsistence farming, had been left untended.27 The buildings and physical infrastructure had been substantially damaged.28 The treasury as well as the physical assets of the country had been plundered or destroyed.29

Along with the overall destruction of Rwanda in the spring of 1994 came the devastation of Rwanda's judicial structures. The great majority of judicial and law enforcement personnel had been killed or fled the country.30 Moreover, the basic resources needed to run a legal system--books, vehicles, even paper--were essentially unavailable.31 It was in this context that Rwanda confronted the question of how to pursue justice in the wake of genocide.

A. The International Criminal Tribunal for Rwanda

In September 1994, sixteen months after the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY),32 the new government of Rwanda requested that the United Nations establish an International Criminal Tribunal for Rwanda (ICTR) to adjudicate the crimes of genocide, war crimes, and crimes against humanity that had been committed in the country.33 As negotiations over the terms for establishing an ICTR proceeded, however, Rwanda objected to a number of provisions.34 Some of these original points of tension remain as issues that may tend to limit or at least to call into question the efficacy of the ICTR.

First, Rwanda took exception to the time period over which the ICTR would have jurisdiction. According to the ICTR Statute then being drafted, only crimes committed between January 1 and December 31, 1994 would come within the jurisdiction of the ICTR. Manzi Bakuramutsa, then Rwandan Ambassador to the United Nations, argued that such limited temporal jurisdiction would prevent the ICTR from fully capturing within its prosecutorial scope the criminal activities that culminated in the genocide of 1994.35 Those activities, he observed, began with planning and sporadic massacres--"pilot projects for extermination" as he called them--dating back to 1990.36

In evaluating this objection, one must understand not only the ICTR's temporal jurisdiction, but also its subject-matter jurisdiction. While the ICTR was to have jurisdiction over actual killings, rapes, and other acts constituting genocide, war crimes, and crimes against humanity only if those acts were committed in 1994, it is likely that under the terms of the ICTR Statute, the planning, preparation, or aiding and abetting of those 1994 acts also can form the basis for criminal liability through complicity, even if that preparation occurred prior to 1994.37 Final determination of whether that form of accomplice liability will be recognized by the ICTR as coming within its temporal jurisdiction must await a judicial ruling.38 If the aiding and abetting prior to 1994 of crimes that were completed in 1994 is determined to come within the temporal jurisdiction of the ICTR, then not quite as much was lost by the limitation on the ICTR's temporal jurisdiction as one might at first have imagined.

Nevertheless, even if that liberal interpretation of accomplice liability is adopted by the ICTR, there are certain crimes that the Statute's temporal limitation will indeed exclude. For example, killings and other crimes committed in massacres prior to 1994 would be excluded. In addition, significant acts of incitement would not be covered. It appears that incitement to commit genocide is punishable under the ICTR Statute even without proof that the incitement actually led to subsequent acts of genocide.39 Unlike planning or aiding and abetting, which form the basis for criminal liability only when they can be linked to a completed crime, it appears under the ICTR Statute that incitement to genocide is a crime in itself.40 Here, the temporal jurisdiction limit of the ICTR would be significant: incitements to genocide that occurred prior to 1994 (and they did) would be excluded from the prosecutorial scope of the International Tribunal.41

The Rwandans also objected that the proposed ICTR Statute provided for so little personnel, both judicial and prosecutorial, that the ICTR could not possibly be expected to fulfill the monumental task set before it.42 Not only was the total number of judges very small (six trial judges and five appellate judges), but the appellate judges were to be shared with the ICTY.43 Moreover, the ICTR and ICTY were to share one Prosecutor.44

One can perhaps concur with the rationale behind maintaining a shared appellate chamber for the two International Tribunals: the importance of developing a coherent body of international criminal law may weigh against having separate appellate courts potentially rendering conflicting statements of international law. But that rationale does not explain why a larger total number of judges could not be provided.

Nor is it clear exactly what benefit was to be gained by the two Tribunals sharing one Prosecutor. The explanation that having one Prosecutor would ensure consistency in prosecutorial approach is less than compelling. (Indeed, exploration of a range of prosecutorial approaches might be most valuable in the nascent enterprise of international prosecutions.) Those who viewed the ICTY and ICTR as important precedents for and perhaps forerunners of a permanent International Criminal Court (ICC) would presumably have favored establishment of a single prosecutorial authority. One advantage, at least in the short term, of having only one Prosecutor was that a protracted selection process such as that which preceded selection of the ICTY Prosecutor was avoided in the case of the ICTR.

Now having the benefit of two years' experience, some personnel at the Office of the Prosecutor for the ICTY and ICTR (ICTY/R) observe that having a single prosecutorial office fosters the development and efficient deployment of the specialized expertise required for the unique mission of international criminal tribunals.45 One point that seems clear is that, since the two Tribunals share one Prosecutor who has substantial responsibilities for oversight and coordination of the two prosecutorial efforts and for relations with the United Nations and other international and national agencies, the prosecutorial effectiveness of the two Tribunals will depend heavily on strong leadership by the DeputyProsecutors (there is one Deputy Prosecutor for each Tribunal) in the day to day execution of the prosecutorial mission. Some commentators, within and outside the Tribunals, have argued that this has not been the role, to date, of the Deputy Prosecutors.46

Another major objection raised by the Rwandans concerned the death penalty.47 The Statute of the ICTR provided for imprisonment as the most severe sentence, precluding imposition of capital punishment by the ICTR.48 The Rwandan Penal Code, by contrast, does provide for the death penalty.49 Since the ICTR was expected to try the leaders and organizers of the genocide, the specter of disparate sentencing was raised: The leaders of the genocide, tried before the International Tribunal, would escape the death penalty while lower-level perpetrators, tried in Rwandan national courts, might be executed. As Mr. Bakuramutsa noted, "That situation is not conducive to national reconciliation in Rwanda."50

These, then, were some of Rwanda's objections to the Statute that would establish the ICTR.51 By the end of the process of promulgating the ICTR Statute, some Rwandans involved in those negotiations were convinced that the United Nations had no real commitment to contributing to justice in Rwanda. Rather, the attributed motives for establishing the ICTR were, first, to provide a fig-leaf-after-the-fact to cover the shameful failure of the international community to intervene in the genocide and, second, to establish an additional precedent contributing to momentum toward establishment of an ICC.52 By strange coincidence, Rwanda held a seat on the UN Security Council at the time when the ICTR was being established. Ironically, because of its objections to the ICTR Statute as it was finally drafted, Rwanda cast the sole vote opposing adoption of the Security Council resolution establishing the ICTR.53

Nevertheless, the ICTR was established. And, notwithstanding its vote against the ICTR Statute, Rwanda expressed its intention to support the ICTR and cooperate with its work.54

But the ICTR is not expected by any means to address the bulk of Rwanda's staggering volume of genocide-related criminal cases. As of January 1997, Rwanda's prison population has grown to over 90,000, virtually all awaiting prosecution for genocide-related crimes.55 The caseload of the ICTR is expected to be in the hundreds at most.

B. National Justice

Rwanda thus is faced with the enormous problem of how to handle the other 90,000-plus criminal cases arising from the Rwandan genocide. Specialized legislation to facilitate handling of the genocide-related caseload was designed and drafted over the course of several months in 1995-96. On September 1,1996, after prolonged debate over the legislation's controversial provisions, the "Organic Law on the Organization of Prosecutions for Offenses Constituting the Crime of Genocide or Crimes Against Humanity Committed Since October 1,199056 came into force as the law that will govern national prosecutions for the genocide in Rwanda.

Drafting that legislation required finding a path through an array of profoundly problematic options. The Rwandan criminal justice system had never been equipped to handle a large volume of cases, and it had been entirely disabled during the violence. It tried no cases in 1995. That was the justice system that had to manage, in some way, to handle tens of thousands of the most serious criminal cases. (Since the defendants in those cases were already in prison, even just doing nothing was not an option.) This criminal justice crisis had to be met with almost no resources, barely any trained personnel and, even worse, in a highly volatile political environment.

The specialized criminal justice program laid out in the law that was passed to respond to this situation is, in essence, quite simple. Suspects will be classified into four categories according to their degrees of culpability in the Rwandan genocide. The first category will include leaders and organizers of the genocide and perpetrators of particularly heinous murders or sexual torture. All others who committed homicides will come within Category Two. Category Three will include perpetrators of grave assaults against the person not resulting in death. And those who committed property crimes in connection with the genocide will fall into Category Four.57

This specialized criminal justice program will rely heavily on a system of plea agreements. All perpetrators other than those in Category One (who will be subject to the death penalty)58 will be entitled to receive a reduced sentence as part of a guilty-plea agreement.59 Specifically, a pre-set, fixed reduction in the penalty that would otherwise be imposed for their crimes is available to all non-category One perpetrators in return for an accurate and complete confession, a plea of guilty to the crimes committed, and an apology to the victims.60 A greater penalty reduction is made available to perpetrators who confess and plead guilty prior to prosecution than to perpetrators who come forward only after prosecution has begun.61

The sentences provided under the specialized legislation are as follows. Category Two perpetrators will receive a sentence of seven to eleven years imprisonment if they plead guilty prior to prosecution, a sentence of twelve to fifteen years imprisonment if they plead guilty after prosecution has begun, or a sentence of life imprisonment if convicted at trial.62 Category Three perpetrators will receive a penalty of one third the prison sentence normally applicable for their crimes if they plead guilty before prosecution, a sentence of half the term of years normally applicable if they plead guilty after prosecution has begun, and the sentence ordinarily applicable if convicted at trial.63 All Category Four defendants convicted will receive suspended sentences.64

A substantial reduction in sentence is thus provided where a Category-Two or -Three defendant submits a guilty plea before prosecution. This leniency is extended in order to encourage perpetrators to come forward before prosecution.65 A perpetrator who pleads guilty prior to prosecution eliminates the need for the prosecutor to conduct a full investigation and prepare a completed dossier for the case in question. Similarly, the penalties imposed pursuant to a guilty plea submitted after prosecution has begun but before conviction at trial are less severe than the penalties imposed pursuant to a conviction at trial. This structure is intended to maintain incentives for perpetrators to plead guilty even after the initiation of prosecution.66

Plea agreement systems, while pervasive in adversarial systems such as that of the United States, are uncommon (and largely unacknowledged) in inquisitorial criminal justice systems such as those of Rwanda and of continental Europe. The specialized plea-agreement system in Rwanda thus is an unprecedented feature in Rwandan law. This somewhat alien mechanism will be relied upon to do much to relieve the extraordinary burden posed by the enormous criminal caseload arising from the genocide.

The Rwandan specialized criminal justice program, as noted earlier, requires that the defendant, as part of the plea-agreement package, make an accurate and complete confession of the crimes committed, including disclosure of any accomplices.67 This requirement of a detailed confession was considered important for establishing a truthful historical record of the Rwandan genocide, allowing for meaningful verification of the accuracy of the confession, and assisting in prosecutors' continuing investigations and prosecutions of the genocide-related crimes.68

The additional requirement that a perpetrator participating in the confession and guilty plea program make an apology to the victims of his or her crimes69 is intended to contribute to the process of national healing and reconciliation.70 While it is true that defendants may often have an ulterior motive for making these apologies (to obtain the reduced sentences offered in the plea agreement program), the apologies will nevertheless represent at least some statement of recognition of wrongdoing which, in the aggregate, may contribute to national reconciliation.71

The Rwandan specialized criminal justice program represents a complex compromise. While full and regular criminal prosecution of every suspected perpetrator might in many respects be the most desirable course of action, the resources demanded by such an approach would quickly overwhelm national capacities. Therefore, a decision has been made in Rwanda to establish a program which, it is hoped, will accomplish the crucial purposes of criminal justice and contribute to reconciliation while also respecting resource limitations.

An approach such as that adopted in Rwanda offers the benefit of expediency in handling an enormous volume of cases and may contribute to national healing and reconciliation. At the same time, however, there is reason for concern about the potential for miscarriage of justice under such a system. Factually innocent suspects may choose to plead guilty for fear of a worse outcome at trial or to avoid extensive delays before trial. These concerns are exacerbated by the fact that no provision to date has been made for any form of defense counsel for many of the indigent defendants in Rwanda.72 On the other side of the equation, survivors and others rightly ask why perpetrators of these horrific crimes should receive leniency, especially while an "ordinary criminal" who committed a murder in Rwanda tomorrow would not receive that same benefit.

The question to ask in designing legal responses in the complex situations surrounding crimes of mass violence is: What action will do the most good and the least harm under the circumstances? Full trial of 90,000 defendants--more than one percent of the national population--would be infeasible in even the wealthiest nation and is emphatically not an option in Rwanda. At the other extreme, releasing prisoners en masse under an explicit or implicit grant of amnesty would perpetuate a culture of impunity, be unacceptable to the survivor population, and constitute a heightened security risk within the country. The value of the system adopted in Rwanda will depend in the end both upon the soundness of the design itself and on the quality of its implementation, which shall unfold in the coming months.